On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-181-06.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 06, 2010
Before Judges Axelrad, Lihotz and J. N. Harris.
In this matter, we examine the trial court's application of the Supreme Court's holding in New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2009). Defendant J.D. appeals from the Family Part order, which, following a bench trial, denied her request to return her daughter to her physical custody and ordered the child remain in the custody of her father, J.B. For reasons other than those stated by the trial court, we affirm.
J.D. is the mother of three children. Because the children have the same initials as their parents, we have chosen to identify them using fictitious names. The oldest child, John, is now seventeen years old and his brother, James, is now fourteen. The youngest child, Jane, is now eleven and she is the subject of this litigation. J.B. is Jane's father.
On April 11, 2006, following the emergency removal of the children from J.D.'s home by plaintiff, the Division of Youth and Family Services (the Division), N.J.S.A. 9:6-8.29, a Dodd hearing*fn1 was held. The Division learned J.D. had quit her job, lost her housing, joined a restrictive religious community, and removed the children from school in favor of residing on a religious compound. The Division's caseworker attempted to interview J.D., who did not answer questions and "would go on fits of rambling" and "outbursts." The Division requested temporary custody, alleging J.D. had neglected the children by withdrawing them from school. The court granted the Division's request and ordered all three children be placed with their maternal grandmother. See N.J.S.A. 9:6-8.28(a).
The following day, the Division filed its complaint alleging the children were abused and neglected while in the care of J.D., pursuant to N.J.S.A. 9:6-8.30(b), -8.33(a), and that the family was in need of service, citing N.J.S.A. 30:4C-11 and -12. Specifically, the complaint challenged J.D.'s mental and emotional stability by asserting J.D.'s conduct, such as her refusal to allow the children to have contact outside the religious community, the removal of the children from school for three to four months, and her relinquishment of employment with the resultant loss of housing requiring the children to remain in the home of a member of the religious community, had placed the children at risk and demonstrated J.D.'s need for mental health services. The Division had contacted each of the children's fathers, who were cooperating with its requests for evaluation and services. The complaint referenced "pending litigation" between J.D. and J.B. regarding Jane's custody.
The court continued the provisions of the prior order that granted the Division custody, care and supervision of the children and affirmed their placement with their grandmother. N.J.S.A. 9:6-8.31(b). Although J.D. denied any need for mental health treatment, the court ordered that she participate in a psychological evaluation, attend counseling and enroll in parenting skills classes. J.D. was permitted visitation with the children, supervised by her mother. At J.D.'s insistence, visits occurred at her church.
Approximately two months later, the three children were moved to the home of their aunt. J.D.'s visitation continued to be supervised and was taking place in her mother's home. Reunification efforts stalled because J.D. advised she had not attended counseling, as psychotherapy was incompatible with her religious views. J.D. agreed to commence pastoral counseling, which was accepted with the hope she would later transition to more traditional psychotherapy.
Following Jane's removal from her mother's care, J.B. was permitted supervised visitation. Reports of prior supervised visits between Jane and J.B. that were issued following a domestic violence finding revealed he had appropriate parenting skills. The court supervisor noted J.B. engaged in "stimulating and cheerful" conversations with Jane. The child greeted her father with "genuine happiness and affection," the two would "talk the entire visit, and laugh and giggle during the time."
On the scheduled date for a fact-finding hearing, N.J.S.A. 9:6-8.44, the court accepted the parties' stipulation regarding the course of the continued litigation. The Division requested to dismiss the Title 9 allegations and continue the matter under Title 30, N.J.S.A. 30:4C-12, following J.D.'s acknowledgement that the children could not return home because she had inadequate housing and further, that she needed services to address possible mental health issues and family therapy.
The judge entered an order stating the action was a Title 30 proceeding, and specifically noted he was doing so "without a finding of abuse or neglect." The court ordered J.D. to continue psychotherapy, attend a psychiatric evaluation, obtain housing and employment, and continue supervised visitation in the home of the children's caretaker, their maternal great aunt.
During the proceeding, J.B. requested Jane be placed in his care. He explained Jane had lived with him three days each week when J.D. attended the State correction officer's academy. J.B. noted he, A., his fiancée, and their two girls had a stable home,*fn2 Jane had a good relationship with her siblings, and the residence provided sufficient space for her to live. Jane's grandmother agreed Jane loved her father and should spend time with him; however, she counseled against splitting up the three children.
In considering J.B.'s request, the judge referenced a domestic violence file in which J.B. had submitted to a psychological evaluation with respect to his ability to parent Jane. The evaluator, Roger T. Barr, Ed.D., had recommended unsupervised visitation. The court declined to place Jane in J.B.'s home and identified the goal of the matter was to reunify the children with their mother. The judge cautioned, however, if J.D. could not provide a safe and stable home for the children, that objective might change. The judge noted J.B. was free to file a request for custody, which "would involve another hearing" and permitted J.B. unsupervised visitation with Jane for six or eight hours each Saturday.
By September 27, 2006, J.D. was progressing well and compliant with all services suggested by the Division, including counseling with Scott R. Schafer, LPC, LMFT. She remained employed and intended to live with her sister, who had adequate space for the children. She requested unsupervised visits, which the judge allowed to be incorporated in the Division's plan for reunification.
J.B. requested overnight visitation with Jane. The court was told J.B. and the children's caretaker communicated well on visitation issues and were able to adjust the schedule based on Jane's activities. The court granted J.B.'s request, ordering one overnight visit every other weekend.
By year's end, J.D.'s progress slowed as her living arrangement with her sister became strained and she resorted to renting a single room in another's home. J.D. admitted she was not steadily employed, but continued to ponder possible employment options after reinstating her cosmetology license.
Based on reports by the children, their therapist requested J.D.'s visits remain supervised. Apparently, during one unsupervised visit, J.D. told the children they were not permitted to eat, as it was the Sabbath. During another, J.D. yelled and screamed and during a third, J.D. told the children she was going to run away with them. The court ordered all visits be supervised by and in the home of J.D.'s mother or occur at the church.
No change was ordered regarding J.B.'s care of Jane. The court advised J.B. he could file a motion if he desired additional parenting time.
One year following removal, conflict and bickering between J.D. and her children prompted additional evaluations and a request that she attend parenting skills classes. The children's caretaker expressed difficulties in reaching J.D., who had no telephone and did not regularly communicate with the children. The caretaker stated that in the past four months, J.D. missed many visits. All three children expressed discontent with, and a desire not to return to their mother's care; Jane wished to live with her father, while her brothers sought to stay with their great aunt.
J.D. stated it was her desire to delay any attempted reunification until July 1, so as not to "disrupt the children's schooling." J.D. planned to obtain housing and conclude her community college classes by that date.
Jane began displaying regressive behavior and tantrums to the point of needing crisis intervention, as a result of J.D.'s absence, adjustment problems in her great aunt's home and difficulties with her older brothers. Jane was taken to JFK Hospital in Stratford on March 19, 2007, where she commenced intensive counseling and was scheduled for a psychiatric evaluation.
On April 30, 2007, the children's caretaker requested their removal. John and James were placed separately with their respective paternal aunts, and Jane was placed with J.B., in accordance with the court's order granting him legal and physical custody. J.D. continued supervised visitation at her mother's home.
During a review hearing held on July 16, 2007, the court was advised that J.D. had obtained employment, located an adequate apartment, and continued psychotherapy with Mr. Schafer. The court continued Jane's custody with J.B., but granted J.D. unsupervised visits including an overnight visit every other weekend with John, James and Jane. The court also entered a self-executing order allowing the ...